Citation Nr: 9820368
Decision Date: 07/01/98 Archive Date: 07/13/98
DOCKET NO. 94-38 172 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Montgomery,
Alabama
THE ISSUES
1. Entitlement to service connection for tinnitus.
2. Entitlement to service connection for lichen simplex
chronicus with prurigo nodules secondary to exposure to
ionizing radiation.
REPRESENTATION
Appellant represented by: Alabama Department of Veterans
Affairs
ATTORNEY FOR THE BOARD
T. Mainelli, Associate Counsel
INTRODUCTION
The appellant served on active duty with the U.S. Coast Guard
Reserve from January 1943 to February 1946.
This case comes before the Board of Veterans’ Appeals (Board)
on appeal from a March 1994 rating decision by the
Montgomery, Alabama, Regional Office (RO) of the Department
of Veterans Affairs (VA) which, in relevant part, denied
service connection for bilateral hearing loss, tinnitus and
lichen simplex chronicus with prurigo nodules. The Board
remanded this case in May 1996 for further development. By
means of a September 1997 rating decision, the RO granted
service connection for bilateral hearing loss and denied
service connection for the issues currently under review.
CONTENTIONS OF APPELLANT ON APPEAL
The appellant contends that tinnitus was caused by his
exposure to excessive noise for eighteen months while he
served on board ship. In addition, he claims that lichen
simplex chronicus with prurigo nodules was caused by exposure
to ionizing radiation following the bombing of Nagasaki.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1998), has reviewed and considered
all of the evidence and material of record in the appellant's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the evidence supports service
connection for tinnitus, and that the claim for service
connection for lichen simplex chronicus with prurigo nodules
secondary to exposure to ionizing radiation is denied as not
well grounded.
FINDINGS OF FACT
1. Tinnitus is the result of exposure to acoustic trauma
during active service.
2. Lichen simplex chronicus with prurigo nodules is not a
“radiogenic” disease under 38 C.F.R. § 3.311 (1997).
3. Lichen simplex chronicus with prurigo nodules was first
shown medically many years after active service.
4. No competent medical evidence has been presented or
secured to establish that a nexus exists between the
appellant’s lichen simplex chronicus with prurigo nodules and
active service.
CONCLUSIONS OF LAW
1. Tinnitus was incurred in service. 38 U.S.C.A. §§ 1110,
1131 and 5107 (West 1991).
2. Lichen simplex chronicus with prurigo nodules was not
incurred or aggravated in service, and may not be presumed to
have been incurred in service as a result of exposure to
ionizing radiation. 38 U.S.C.A. §§ 1110, 1112, 1131, 1133
(West 1991); 38 C.F.R. §§ 3.303, 3.311 (1997).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
As a preliminary matter, the Board notes that, in its
September 1997 rating decision, the RO reviewed the
appellant’s claim for service connection for lichen simplex
chronicus with prurigo nodules due to radiation exposure
under the new and material standard. A final decision, as
defined by 38 U.S.C.A. § 7105(c) and 38 C.F.R. §§ 3.104(a);
3.160(d); 20.302(a) (1997), has not been rendered with
respect to this claim. Accordingly, the appellant is
entitled to have his claim reviewed de novo according to the
“well-grounded” standard pursuant to 38 U.S.C.A. § 5107(a).
As stated previously, the appellant contends that he
currently has tinnitus as a result of his eighteen months of
exposure, without ear protection, to engine room noises
during World War II. In addition, he claims that his skin
condition of lichen simplex chronicus with prurigo nodules
was caused by his exposure to ionizing radiation following
the bombing of Nagasaki.
Service medical records reveal that, prior to his entry to
service, the appellant fractured his skull in an automobile
accident. Entrance examination, dated December 1942, showed
a normal clinical evaluation of the skin and ears.
Separation examination, dated February 1946, revealed a scar
of the skin on the left arm and also a scar stemming from an
appendectomy. Ears were clinically evaluated as normal and
there were no complaints of tinnitus.
On VA general medical examination, dated December 1993, the
appellant reported that he previously had “skin cancer”
removed from his nose, his lower right eyelid and his upper
back. However, he then stated that the removed lesions were
not “cancerous.” He also indicated that he was told that
the lesions were caused by radiation exposure. He reported
that, 10 days following the bombing of Nagasaki, he spent
approximately 30 days of duty within the city. The diagnosis
was lichen simplex chronicus with prurigo- nodules.
On VA audio examination, dated December 1993, the appellant
complained of tinnitus of five years duration. He was
diagnosed with mild sensorineural hearing loss of the left
ear, and moderate sensorineural hearing loss of the right
ear. On VA audio- ear disease examination, dated August
1996, the appellant reported an intermittent ringing in his
ears ever since he worked in the engine room for the Coast
Guard. The frequency and duration had steadily progressed
since active duty and, at times, the ringing was louder than
the human voice. Diagnosis was of tinnitus which began
secondary to chronic noise exposure in the engine room of the
Coast Guard.
I. Service connection for tinnitus
Initially, the Board finds that the appellant’s claim for
service connection for tinnitus is “well-grounded” within
the meaning of 38 U.S.C.A. § 5107(a). That is, he has
submitted “a plausible claim, one which is meritorious on
its own or capable of substantiation.” Murphy v. Derwinski,
1 Vet.App. 78, 81 (1990). Furthermore, the appellant has
undergone recent VA audiological examination and the record
does not reveal any additional sources of relevant
information which may be available concerning the present
claims. The Board accordingly finds the duty to assist him,
mandated by 38 U.S.C.A. § 5107, has been satisfied.
Medical evidence establishes that the appellant has tinnitus
and, the Board notes, he is service connected for bilateral
sensorineural hearing loss. His claim of exposure to
acoustic trauma of engine room noise is consistent with his
military occupational specialty of a motor machinist’s mate.
While he has provided inconsistent accounts of the date of
onset of tinnitus, and there is no medical evidence of
tinnitus until many years after service, there is medical
opinion to the effect that tinnitus is secondary to chronic
noise exposure in the engine room of a Coast Guard ship.
Also, it is well accepted that sensorineural hearing loss and
tinnitus often have a common etiology.
Where the weight of the evidence supports the appellant’s
claim or is in relative equipoise (an approximate balance of
positive and negative evidence regarding the merits of a
material issue), the appellant is to prevail in either event.
It is only where the weight, or preponderance, of the
evidence is against the appellant’s claim that the claim can
be denied. 38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R.
§ 3.102 (1997); Gilbert v. Derwinski 1 Vet.App. 49 (1990).
The Board concludes that the evidence of record is in
relative equipoise concerning the merits of his claims for
service connection for tinnitus. Accordingly, giving the
appellant the benefit of the doubt, the Board finds that his
tinnitus was caused by acoustic trauma in service.
38 U.S.C.A. § 5107(b) (West 1991).
II. Service connection for lichen simplex chronicus with
prurigo-
nodules based upon exposure to ionizing radiation
With respect to his claims of presumptive service connection
based upon the alleged exposure to ionizing radiation, the
Board notes that lichen simplex chronicus with prurigo-
nodules is not among the “radiogenic” diseases listed at
38 C.F.R. § 3.311. Furthermore, the appellant has not cited
or submitted competent scientific or medical evidence that
this condition is radiogenic. 38 C.F.R. § 3.311(b)(4)
(1997). Even assuming, arguendo, that the appellant was
exposed to ionizing radiation, there is no basis under
38 C.F.R. § 3.111 upon which service connection for his skin
disorder may be granted. Thus, his claim for service
connection for lichen simplex chronicus with prurigo- nodules
under 38 U.S.C.A. § 1112(c) and 38 C.F.R. § 3.311 is not
plausible.
III. Service connection for lichen simplex chronicus
with prurigo nodules on a direct basis
Notwithstanding the fact that the foregoing presumption is
not applicable to the appellant’s disorder, the United States
Court of Appeals for the Federal Circuit has held that the
Veteran’s Dioxin and Radiation Exposure Compensation
Standards (Radiation Compensation) Act, Pub. L. No. 98-542,
§ 5, 98 Stat. 2725, 2727-29 (1984) does not preclude a
veteran-claimant from establishing service connection with
proof of actual direct causation. See Combee v. Brown, 34
F.3d 1039, 1040 (1995).
In order to well ground a claim for service connection, the
appellant must present evidence of 1) a current disability as
provided by a medical diagnosis; 2) evidence of incurrence or
aggravation of a disease or injury in service as provided by
either lay or medical evidence, as the situation dictates;
and 3) a nexus, or link, between the in-service disease or
injury and the current disability as provided by competent
medical evidence. See Caluza v. Brown, 7 Vet.App. 498
(1995); see also 38 C.F.R. § 3.303 (1997); Layno v. Brown, 6
Vet.App. 465 (1994); Espiritu v. Derwinski, 2 Vet.App. 492
(1992).
Upon a review of the entire record, the Board finds that the
claim for service connection for lichen simplex chronicus
with prurigo nodules is not well grounded. Service medical
records are negative for this disorder, which was first shown
medically many years after service. Furthermore, there is no
medical evidence of a link, or nexus, between service and
lichen simplex chronicus with prurigo nodules.
The crux of the appellant’s claim appears to be that a
private doctor opined that his skin disorder stemmed from
radiation exposure. Despite being provided the opportunity,
written submission of this opinion has not been forthcoming.
It is well settled that “any statement of appellant as to
what a doctor told him is … insufficient to establish a
medical diagnosis.” Warren v. Brown, 6 Vet.App. 4, 6
(1993); see also Grottveit v. Brown, 5 Vet.App. 91, 93
(1993). This account of what a physician told him cannot
supplement the requirement of a competent medical diagnosis
in the context of determining well-groundedness. See
Robinette v. Brown, 8 Vet.App. 69, 77 (1995). As a layman,
the appellant is not competent to provide testimony on what
is, essentially, a question of medical causation. Grottveit,
at 93. Accordingly, because at least one of the essential
Caluza elements is not present, the claim must be denied as
not well grounded. See Edenfield v. Brown, 8 Vet.App. 384
(1996) (en banc) (disallowance of a claim as not well-
grounded amounts to a disallowance of the claim on the merits
based on insufficiency of evidence).
Although VA does not have a statutory duty to assist a
claimant in developing facts pertinent to his claims where
that claims are not well grounded, VA may be obligated under
38 U.S.C.A. § 5103(a) to advise a claimant of evidence needed
to complete his or her application. Here, the appellant has
not referenced any existing evidence which arguably would
well ground the claims, and, therefore, VA has no further
duty under 38 U.S.C.A. § 5103(a).
ORDER
Service connection for tinnitus is granted.
The claim for service connection for lichen simplex chronicus
with prurigo- nodules due to exposure to ionizing radiation
is denied as not well grounded.
NANCY I. PHILLIPS
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1998), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
- 2 -